Moss v. Sugar Ridge Township

• Decision Date: 19 November 1903
• Docket Number: 20,210
• Citation: 68 N.E. 896,161 Ind. 417
• Parties: Moss et al. v. Sugar Ridge Township, Clay County
• Court: Indiana Supreme Court

68 N.E. 896

161 Ind. 417

Moss et al. v. Sugar Ridge Township, Clay County

No. 20,210

Supreme Court of Indiana

November 19, 1903

From Clay Circuit Court; P. O. Colliver, Judge.

Action by John C. Moss and others against Sugar Ridge Township. From a judgment for defendant, plaintiffs appeal. Transferred from Appellate Court, under clause 2, § 1337j Burns 1901.

Affirmed.

S. D Coffey, S. M. McGregor and J. A. McNutt, for appellants.

G. S Payne and G. A. Knight, for appellee.

OPINION

Jordan, J.

Action by appellants upon a written contract to recover against Sugar Ridge township, Clay county, the sum of $ 1,200 for work and labor performed in repairing and improving a certain public highway in said township. A copy of the contract is filed with the complaint and made a part thereof. The following facts are disclosed by the pleading: On August 17 1899, appellants and one Samuel Butt, the proper trustee of said Sugar Ridge township, entered into the written contract in suit for the repairing and improving of a certain public highway therein. This highway, at the time the contract was made, was in need of repair and improvement, it being unfit for travel by the public thereover. Before entering into the contract in question, the township trustee, together with appellants, consulted an attorney at law who at the time was the legal adviser of the trustee in regard to matters pertaining to his office. This attorney informed appellants and the trustee that the latter had the legal right to bind his township by making said contract. Appellants, as averred, were ignorant of the law governing the power of the trustee in such cases, and they, in good faith, relied upon the advice of the attorney, and thereupon entered into said contract for repairing and improving the highway in question, and thereunder repaired and improved it. The work or labor performed by them in making said improvement, it is alleged, was reasonably worth $ 1,219.22. The character of the work, etc., is specified and the charges itemized. It is further averred that the work performed upon the highway was necessary in order to render it safe and suitable for the travel of the public thereon, and that after the completion of said improvement the township trustee and the public accepted it, and have received the benefits thereof. It is alleged that appellants, after they had finished the work in question, for the first time were informed that the township trustee had no power, under the law, to make said contract and thereby bind his township, and that he had acted without authority. It is charged that although the township has received the benefit of the work performed by appellants upon the highway, it nevertheless refuses to pay therefor. A demurrer for want of facts was sustained to the complaint, and its sufficiency to withstand a demurrer is the only question presented.

The contention of appellants' learned counsel is that the contract set out in the complaint was within the general scope of the legal authority with which the township trustee was invested in respect to the repair and improvement of public highways within his township. They admit, however, that the contract is impressed with an infirmity or invalidity because of the failure of the trustee to receive bids for the improvement of the highway, and let the work, upon notice, to the lowest bidder, as provided by the road law pertaining to the expenditure of road taxes. §§ 6835, 6836 Burns 1901. This failure, it is conceded, rendered the contract void; but the argument is advanced that the omission upon the part of the trustee to let the contract for the improvement of the highway to the lowest bidder, as provided by § 6836, supra, was due to the mistake of appellants' attorney, and that the mistake is of such a technical character that a court of equity will nevertheless award appellants the necessary relief. Under the facts it is further contended that inasmuch as the township has received the benefit of appellants' labor, which was necessary in improving the public road, therefore the law created an implied contract upon its part to pay the reasonable worth of the labor performed. In support of the contention counsel cite Boyd v. Black School Tp., 123 Ind. 1, 23 N.E. 862, and cases of like character.

Counsel for appellee, however, insist that the contract in question is null and void, because the trustee, under the facts, is not shown to have had any authority whatever to create a debt against his township for improving the highway in controversy, in the absence of funds on hand, or to be derived from an existing levy, which he could legally have used in the payment for the improvement. Or, in other words, their contention is that the contract in suit is void for the reason that it was entered into in violation of the provisions of an act of the legislature approved February 27, 1899 (Acts 1899, p. 150), known as the township reform law. We are of the opinion that this contention must be sustained.

By § 1 of this act an advisory board is created for each township in this State, to be composed of three resident freeholders and qualified voters of the township, and it is required to meet annually on the first Tuesday in September notice of which meeting shall be given as provided by § 3 of the act. The law provides that at such meeting this board shall consider the various estimates of township expenditures proposed by the trustee, and shall have the power to concur in such estimates in whole or in part, or to reject the same or any part thereof, or to reject any proposed item in whole or in part. It is authorized to fix and determine the rate of taxes to be levied for the ensuing year upon the property and polls of the township subject to taxation. By § 3 the township trustee is required, not less than thirty nor more than forty days before the annual meeting of the board, to post at or near the doors of all the postoffices in the township a notice and statement of the "several estimates and amounts of the proposed annual expenditures and the rates of taxation proposed for levy against the property within such township for the several funds to be expended for his township during the calendar year, and also copies of such notice shall be published one time in the issue printed in the first week of August of each year in the two leading newspapers published in the county, representing the two political parties casting the highest number of votes in such county at the last preceding general election, and one publication in a newspaper in the township interested, if there be a paper published therein. * * * And he shall furnish within like periods to each of the members of the advisory board, a statement of such estimates and amounts. Such statement shall contain a notice of the place of meeting of the advisory board, and shall be substantially in the following form." Clauses one, four, and five of the statement prescribed are as follows: "1. Township expenditures, $ ...., and township tax, .... cents on the hundred dollars." "4. Road tax expenditures, $ ...., and tax, .... cents on the hundred dollars. 5. Additional road tax expenditures, $ ...., and tax, .... cents on the hundred dollars." Section 6 of this act, among other things, authorizes the township trustee to convene this board in special session, and it may at such meeting determine whether an emergency exists for the expenditure of any sums of money not included in the existing estimates and levies. It is provided in said section that "In the event that such an emergency is found to exist, said board...